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COUNCIL Of MINISTERS SOCIALIST REPUBLIC Of VIETNAM
No. 366-HDBT Independence-freedom-Happiness
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Hanoi, 7 November 1991.
In order to ensure proper evaluation of projects with foreign owned capital and to create favorable conditions for foreign organizations and individuals to invest in Vietnam;
On the proposal of the Chairman of the State Committee for Co-operation and Investment;
DECIDES:
Article 1
To promulgate hereby the Regulations on Evaluation of Projects with foreign Owned Capital.
Article 2
This Decision shall have full force and effect as of the date of its promulgation. All previously issued provisions which are inconsistent with these Regulations are hereby repealed.
The Chairman of the State Committee for Co-operation and Investment shall be responsible for implementation of this Decision.
Article 3
Ministers, Chairmen of State Committees, heads of bodies under the Council of Ministers, Chairmen of the people's committees of the provinces, cities and special zones under central authority shall be responsible for implementation of this Decision.
for the Council of Ministers
Vice Chairman
PHAN VAN KHAI (Signed)
General Provisions
Article 1
This regime for assessment of projects with foreign capital investment shall apply to the assessment investment projects in the three forms: contractual business co-operation, joint venture enterprise or corporation (hereinafter referred to as joint vent ure enterprise), and enterprise with one hundred (100) per cent foreign owned capital.
Article 2
Assessment of a project shall include consideration of the following main matters:
1. The legal status and financial capacity of the foreign and Vietnamese investor.
2. The compatibility of the project with social and economic objectives.
3. The viability of a production plan and suitability of the proposed technology and technical know how.
4. The compatibility of the proposed markets with State policy on the sale of products.
5. Tax rates and duration of any tax exemptions or reductions. Land, water or sea surface rents.
6. The effectiveness of the economic and social aspects of the project; the benefits to be gained by Vietnamese party and the State of Vietnam.
7. The capability of existing infrastructure to meet the needs of the project.
8. The location of the land, water or sea surface to be used for the project; the timing of and steps to be taken in construction.
9. The use and protection of resources and protection of the environment and ecology.
Detailed matters to be considered may be specified for each type or nature of project.
Article 3
The Ministries and the people's committees of provinces and cities shall examine and make specific recommendations on the following principal matters:
1. The compatibility of the objectives of the project with the development policy of the relevant branch and locality; the need for utilization of foreign investment.
2. The legal status, financial capacity and current business production of the foreign and Vietnamese economic organizations concerned.
3. The capacity of the locality to satisfy the needs of project for labour, materials, electricity, water, and transport.
4. Valuation of the assets to be contributed by the Vietnamese party to the capital of the joint venture enterprise.
5. The compatibility of the location of the project with planning schemes prepared by the branch.
6. Any petition in relation to the rental rates for land, water or sea surface.
CHAPTER II
Levels of Authority for Evaluation of Projects
Article 4
The levels of authority for evaluation of projects with foreign capital investment are as follows:
1. Projects that require approval from the Chairman of the Council of Ministers:
(a) Projects in the following economic and technical areas regardless of the amount of capital invested;
exploitation or processing of precious or rare mineral resources;
telecommunications, broadcasting, television, and publishing;
marine, aviation, and railway transport and, construction of sea ports, airports, railways, and national highways;
production of pharmaceutical products, poisons, and explosives;
real estate business, finance, and banking;
projects related to defence and security; and
export and import business and international tourism.
(b) Projects in heavy industry with capital investment of over thirty (30) million US dollars.
(c) Projects in other areas with capital investment of over twenty (20) million US dollars.
(d) Projects which require a large area of land and will significantly affect environment.
2. for the purposes of evaluation procedures, the projects which require approval from the Chairman of the Council of Ministers shall be in two categories:
(a) The projects (hereinafter referred to as Group A Projects) which the Chairman of the Council of Ministers shall refer for review by the National Council for Project Evaluation:
- the projects referred to in clause 1(a) of this article with a capital investment of least twenty (20) million US dollars or more;
- the projects referred to in clause 1(b) of this article with a capital investment of forty (40) million US dollars or more;
- the projects referred to in clause 1(c) of this article with a capital investment of thirty (30) million US dollars or more; and
- the projects referred to in clause 1(d) of this article.
(b) The remaining projects (hereinafter referred to as Group B Projects), which the State Committee for Co-operation and Investment and Chairman of the National Council for Project Evaluation shall consider, assess with the Ministries concerned on the basis of the submissions made by Ministries and local bodies and which shall then be submitted to the Chairman of the Council of Ministers for decision.
3. In respect of the projects which are not on the list of projects which require approval from the Chairman of the Council of Ministers (hereinafter referred to as Group C Projects), the State Committee for Co-operation and Investment shall consult with the Ministries concerned and decide whether to issue a licence.
CHAPTER III
Procedure for Evaluation of Projects
I. In Respect of Group A Projects
Article 5
After receipt of the project application and documents, the State Committee for Co-operation and Investment shall request the Chairman of the National Council for Project Evaluation to convene a meeting of the Council to review the project.
The Chairman of the Council of Ministers will make his decision whether to grant an investment licence based on the recommendations of the National Council for Project Evaluation.
Article 6
1. Members of the National Council for Project Evaluation shall include:
- Chairman of the Board: Chairman of the State Planning Committee.
- Vice Chairman of the Board: Vice Chairman of the State Committee for Co-operation and Investment.
- Permanent members of the Council: Ministers or Vice Ministers of the Ministries of finance, Commerce and Tourism, Construction, and the Chairman of the State Committee for Science, the State Bank of Vietnam, and a representative of the office of the Co uncil of Ministers.
- Other members of the Council: The Minister or Vice Ministers responsible for the relevant economic and technical branches and a representative of other branches or localities concerned.
2. The relevant sections in the State Committee for Co-operation and Investment and the State Planning Committee shall provide assistance to the Council to prepare working programs, organize meetings, and prepare written summaries for the Chairman of the Council to submit to the Chairman of the Council of Ministers.
3. The National Council for Project Evaluation may engage local or foreign experts who have knowledge and experience in science, technology, economics or law to make recommendations to the Council.
Article 7
The work of the National Council for Project Evaluation shall proceed as follows:
The Chairman or Vice Chairman of the Council shall preside over meetings of members of the Council - which meetings shall evaluate the projects by reference to each of the matters referred to article 2.
Members of the Council shall be responsible for evaluation of all aspects of the projects. However, each member shall primarily evaluate those aspects within its management responsibility of the branch which he or she represents.
Members of the Council shall attend all Council meetings. An absentee may submit his or her recommendations in writing.
Article 8
The National Council for Project Evaluation shall vote on the basis of a simple majority of votes of those members present at the Council Meeting. In the event that there are significant competing considerations the Chairman of the Council shall submit a lternative recommendations to the Chairman of the Council of Ministers for his consideration and decision.
Article 9
Time for Evaluation of Projects.
Within twenty-five (25) days from the date of receipt of an application and project documents, the members of the National Council for Project Evaluation shall notify the State Committee for Co-operation and Investment of any further information or explan ation which should be sought from the investor for inclusion as necessary information in the project file. The recommendation of the members of the Council consequent their evaluation shall be sent to the State Committee for Co-operation and Investment w ithin forty (40) days from the date of receipt of the application and project documents in writing.
Within two months from the date of receipt of the application and project documents, the National Council for Project Evaluation shall complete its evaluation for submission to the Chairman of the Council of Ministers for decision.
The Chairman of the Council of Ministers shall consider the recommendation of the National Council for Project Evaluation and make an official decision within fifteen (15) days from the date of receipt of the recommendation from the National Council for P roject Evaluation.
The State Committee for Co-operation and Investment shall prepare a letter of reply to the investors based on the decision of the Chairman of the Council of Ministers.
II. In Respect of the Group B Projects
Article 10
The Chairman of the Council of Ministers shall, based on the recommendations of the State Committee for Co-operation and Investment and the Chairman of the National Council for Project Evaluation decide whether to grant a licence in respect of a group B p roject.
Article 11
Time for assessment of projects.
Within five days from the date of receipt of an application and project documents, the State Committee for Co-operation and Investment shall send copies of the project documents to the State Planning Committee, Ministry of finance, Ministry of Commerce an d Tourism, the State Committee for Science, the Ministry of Construction, the State Bank of Vietnam, the Ministries in charge of the relevant economic and technical branch and other Ministries concerned;
Within twenty five (25) days from the date of receipt of the application and project documents, the above-mentioned bodies shall notify the State Committee for Co-operation and Investment in writing of any further information or further explanation requir ed from the investor.
Within forty (40) days from the date of receipt of the application and project documents, the above-mentioned bodies shall submit their recommendations on the project, concentrating on the matters which are within their area of management.
Within fifty (50) days from the date of receipt of the application and project documents, the State Committee for Co-operation and Investment and the Chairman of the National Council for Project Evaluation shall submit their recommendations to the Chairma n of the Council of Ministers for his consideration.
The Chairman of the Council of Ministers shall make an official decision within fifteen (15) days from the date of receipt of the submission from the State Committee for Co-operation and Investment and the Chairman of the National Council for Project Eval uation.
The State Committee for Co-operation and Investment shall prepare a letter of reply to the investors based on the decision of the Chairman of the Council of Ministers.
III. In respect of the Group C Projects
Article 12
The State Committee for Co-operation and Investment shall have the power to consider and grant licenses for group C projects.
Article 13
When considering the projects of this group, the State Committee for Co-operation and Investment shall obtain recommendations in writing from the following bodies: The State Planning Committee, the State Committee for Science, the Ministry of Commerce an d Tourism, the Ministry of finance, the State Bank of Vietnam and the Ministry concerned. Recommendations shall be provided within forty (40) days from the date of receipt of the project file and application. If, after forty (40) days the above-mentione d bodies have not sent their recommendations in writing they shall be considered as not having any recommendations to make on the project of the investor concerned. In the event that there are differing recommendations, the State Committee for Co-Operati on and Investment shall seek the opinion of the Chairman of the Council of Ministers.
CHAPTER IV
final Provisions
Article 14
These Regulations shall be of full force and effect as of the date of their promulgation.
Article 15
The Chairman of the State Committee for Co-operation and Investment and the Chairman of the State Planning Committee shall be responsible for implementing these Regulations.
for the Council of Ministers
Vice Chairman
PHAN VAN KHAI (Signed)